Arizona Eagletarian

Thursday, January 7, 2016

Justice Clint Bolick?

Yesterday, Arizona's Governor, on the heels of appointing a hack to the Arizona Corporation Commission made his first appointment to the state Supreme Court. Enter Clint Bolick who has been chief of litigation at the Goldwater Institute for several years and is the author of David's Hammer: The Case for an Activist Judiciary.

Here's one blurb from Amazon:

Judicial activism is condemned by both right and left, for good
reason―lawless courts are a threat to republican government. But
challenging conventional wisdom, constitutional litigator Clint Bolick
argues in David's Hammer: The Case for an Activist Judiciary that far
worse is a judiciary that allows the other branches of government to run
roughshod over precious liberties. For better or worse, only a vigorous
judiciary can enforce the limits on executive and legislative action,
protect constitutional rights, and tame unelected bureaucrats. David's
Hammer reclaims for the judiciary its intended role as the ultimate
safeguard of a free society.

The appointment has already raised substantial consternation among liberals/Democrats and is getting nationwide attention. Jonathan H. Adler, in the Washington Post believes,

The most notable thing about this appointment is Bolick’s extensive
background in libertarian public interest litigation and advocacy of
greater judicial protection of property rights and economic liberty.

Economic liberty really is a nebulous term from my perspective. Some have already raised warning about additional infringement on worker rights. But in Arizona? Do workers have rights other than in federal law anyway?

In this clip, Bolick says, of Arpaio's mishandling of more than 400 reported sex crimes, that "this is one of the greatest failures of law enforcement I've ever seen." When I asked Bolick (in 2013) if he had commented publicly on Judge Murray Snow's ruling in 2013 that Arpaio had violated the constitutional rights of Latino citizens (and about the recall effort then underway), Bolick told me,

No I haven't. Our focus has been on different issues. I had not supported the recall previously because he had just been elected and there was nothing new on which to base a recall. But this ruling certainly provides a basis.

GI [Goldwater Institute] rules prohibit staff from being formally involved in election campaigns. But I will sign a petition and let folks know I have done so. (emphasis mine)

Larry Hammond, another prominent Phoenix defense attorney and former
Watergate prosecutor, does not know Bolick personally, but suggests that
independent thought might be what the court needs.

“A thoughtful
conservative is going to be less comfortable with accepting that the
criminal justice system always gets it right,” Hammond said. “It would
be nice for a change to have a judge who’s not so sure about that.”

Paul
Bender, a constitutional scholar from the Sandra Day O’Connor College
of Law at Arizona State University, also thinks Bolick could be a wild
card.

“When a governor makes an appointment, it’s got to be a
political decision,” Bender said. “I think Clint Bolick is smart enough
and has the capability of being a completely independent thinker.”

Bolick
says he came out of his interview with Ducey feeling that the governor
was making a decision based more on judicial philosophy than politics.

“This
is going to be a time when I leave my policy positions behind and take
on the much more difficult task of determining constitutionality and
legality and justice in particular cases,” he told The Republic.

Maybe I will have to read David's Hammer soon. In the meantime, I'm not as leery of Bolick's appointment as many of my Liberal friends. Yes, Bolick is widely seen as an ideologue, but he can take unpopular stands in highly political situations and will stick to his guns (so to speak). That can be a good thing.

Again from Kiefer's story,

Arizona Chief Justice Scott Bales also expressed his optimism about the appointment.

“Clint Bolick has appeared before our court a number of times and has always been a fierce advocate,” Bales told The Arizona Republic. “I am confident that he will be a collegial member of the court and he’ll be committed to fairly upholding the law.”